On gay marriage, President Obama must say ‘I do’

Author: Evan Wolfson
Publication: Politico
Publication Date:

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President Barack Obama’s Justice Department hit one out of the ballpark with the powerful, historic brief filed July 1 in one of the many court challenges to the so-called “Defense of Marriage Act.”

The Justice Department opened with a definitive declaration, MetroWeekly’s Chris Geidner, reported: “Section 3 of the Defense of Marriage Act … unconstitutionally discriminates.”

In a historic concession, the brief confesses the government’s “significant and regrettable role” in the sorry chronicle of anti-gay discrimination in America. In 31 pages of fidelity to constitutional values, the Justice Department details why marriage discrimination, like other forms of discrimination based on sexual orientation must stop.

The government’s brief, which reads like the briefs I used to offer up in hopes of persuading courts years ago when I worked for Lambda Legal, was filed in a Lambda challenge to the DOMA brought by Karen Golinski, a lesbian federal court employee seeking to be treated as what she is – married – in obtaining health coverage and other protections for her spouse. The filing responds to Speaker John Boehner’s diversion of taxpayer resources into hiring outside counsel to meddle in DOMA cases.

The brief puts the government — as opposed to the 3-to-2 Republican majority of the House “Bipartisan Legal Advisory Group” — on the side of the Constitution against federal marriage discrimination.

Crucially, the brief declares: “[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional.” That dramatic government concession underscores how, rather than defending DOMA, the House should instead be working to repeal it by passing the Respect for Marriage Act.

 

This brief was filed as the president was roundly criticized by editorial boards — including The Washington Post, The New York Times; columnists and bloggers; and advocates, including me. “Evolve already” has become the catchphrase summing up what many believe: Obama’s views on the freedom to marry are no longer “evolving” but, rather, are going painfully unstated.

More than 113,000 Americans have added their names to the original signers of Freedom to Marry’s Open Letter calling on the president to join the majority who have taken the same journey toward support that he is now indicating. Freedom to Marry invites others to sign on and encourage the president to “say I do” now.

The president’s deeds in support of the freedom to marry have often, frustratingly, outperformed his words. Words matter – they are an important part of good leadership and good politics The president should indeed speak up clearly on marriage, not just for the families, not just for fairness, not just for the cause – but for his own authenticity and ability to energize supporters. Being against marriage discrimination and inequality is not the same as being for the freedom to marry and equality– and that’s where the president needs to be.

Legally, the president and the Justice Department are doing the right thing. Happily, with the majority support, and momentum in the right direction among Republicans, Democrats and independents, doing the right thing on marriage is also the right thing politically.

The White House bully pulpit should resonate with the same clarity and power in the court of public opinion as the Justice Department brief delivered in the court of law.

“Marriage discrimination is wrong,” said the government’s lawyers. Now, Mr. President, please say it, too: “I support the freedom to marry.”

Evan Wolfson is the founder and executive director of Freedom to Marry.